Privacy Issues in the Workplace

6. R E -V ERIFYING E MPLOYMENT E LIGIBILITY

Effective January 1, 2018, the Immigration Worker Protection Act (AB 450) prohibits a public or private employer, or a person acting on behalf of the employer, from re-verifying the employment eligibility of a current employee at a time or in a manner not required by Section 1324a(b) of Title 8 of the United States Code, unless otherwise required by federal law. 131 An employer who violates this provision is subject to a civil penalty of up to ten thousand dollars, except that the act will not also form the basis for liability or penalty for violating Labor Code section 1019.1. 132 This prohibition concerning re-verification is not meant to be interpreted, construed, or applied to restrict or limit an employer’s compliance with a memorandum of understanding governing the use of the federal E-Verify system. 133 (See also Worksite Inspection of Personnel Files by Immigration Enforcement Agent, infra .)

M EDICAL T ESTING AND M EDICAL I NFORMATION

S ECTION 3

A. A PPLICABLE L AWS In addition to the United States Constitution and the California Constitution discussed above in Section 1 of this workbook, many of the privacy issues regarding medical testing and medical information arise under provisions protecting employees from federal and state disability discrimination laws. While the focus of anti-disability discrimination laws is to prevent disability discrimination, they also protect individual privacy rights concerning applicant and employee medical information. Thus, they not only restrict the use of information about a disability, but also restrict the solicitation of such information. Due to the highly sensitive nature of employee medical information, the disability laws also require employers to strictly maintain the confidentiality of medical information. Additionally, Congress and the California legislature have also enacted statutes governing the handling and disclosure of medical information. This section provides an overview of these laws. 1. T HE C ONFIDENTIALITY OF M EDICAL I NFORMATION A CT (CMIA) The Confidentiality of Medical Information Act (CMIA), California Civil Code sections 56- 56.37, generally prohibits the acquisition, use and disclosure of medical information without prior written authorization from the person whom the information concerns. The CMIA also requires that medical records be kept confidential. With limited exceptions, the CMIA prohibits an employer from using or disclosing (or knowingly permitting its employees or agents to use or disclose) medical information relating to an employee unless the employee first signs a valid authorization. For purposes of the CMIA, medical information is defined as,

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